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      On the 28 th October 2016, the Council of the European Union adopted Council Decision (EU) 2017/37 which authorised the signing of CETA on behalf of the European Union. On the preceding day, the 27 th of October 2016, a number of statements and declarations were entered as statements to the Council minutes, including statement 36 concerning, inter alia , �investment protection and the Investment Court System�:
�All of these provisions having been excluded from the scope of provisional application of CETA, the Commission and the Council confirm that they will not enter into force before the ratification of CETA by all Member States, each in accordance with its own constitutional procedures.�
Statement 36 recognised that CETA and the mechanisms contained therein represented �a step towards the establishment of a multilateral investment court which will, in the long term, become the body responsible for resolving disputes between investors and States� . The appellant opposes the coming into force of these provisions and until such time as ratification takes place, they cannot take effect. The agreement is a very substantial document but the parts of the agreement with which the appellant takes issue are to be found in Chapter 8 of the agreement.
    �The appellant described the agreement as a �mixed agreement� under European Union law, because it covers matters, some of which are within the exclusive competence of the European Union, and some of which are shared competences between the European Union and the Member States. Article 2(2) TFEU makes clear how shared competences are to be exercised:
�When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence.�
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[2026] IEHC 65
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